Ohio and Esau

“Politics is always the lesser of two evils,” Federal Fifth Circuit Judge John Minor Wisdom told me when I was one of his law clerks. I didn’t quite understand that then, in the late 1970s, but I get it now.

Marijuana legalization is gaining steam, and the question is becoming not “whether to legalize” but “how.” And it’s about the money. A recent RAND report put it this way: “A state that legalizes marijuana by allowing limited private sales creates a privilege to sell it. That privilege is worth money, maybe lots of money.”

So the money is up for grabs. And a small group plans to grab all the money in Ohio. The “Responsible Ohio” ballot initiative, to be voted on in November, lets medical and adult-use marijuana be grown and processed only in “ten designated sites,” all owned by wealthy funders of the initiative. Sites like a “40.44 acre area in Butler County, Ohio, identified by the Butler County Auditor, as of February 2, 2015, as tax parcel numbers Q6542084000008 and Q6542084000041.” And the initiative caps taxes permanently. All by Constitutional amendment.

The Responsible Ohio initiative sets up, for some of my friends in the cannabis community, a choice between two evils: prohibition and what NORML’s Keith Stroup calls “a bitter pill to swallow” and “a perversion of the voter initiative process.” But he points out that, for now, the Responsible Ohio initiative “is the only option available to stop the senseless and destructive practice of arresting marijuana smokers in Ohio. Each year nearly 20,000 Ohio residents are arrested on marijuana charges. That’s an enormous price to pay when we have the ability to end prohibition now, albeit with some undesirable provisions.”

Once when Jacob was cooking some stew, Esau came in from the open country, famished. He said to Jacob, “Quick, let me have some of that red stew! I’m famished!” Jacob replied, “First sell me your birthright.” “Look, I am about to die,” Esau said. “What good is the birthright to me?” But Jacob said, “Swear to me first.” So he swore an oath to him, selling his birthright to Jacob. Then Jacob gave Esau some bread and some lentil stew. He ate and drank, and then got up and left. So Esau despised his birthright.

Esau was marginally older than Jacob, his twin, so Esau was entitled to receive the birthright, which included a double portion of the inheritance from their father Isaac. As one commentator puts it, “When Jacob bought the birthright from Esau it was a legal deal. One wanted the beans, the other wanted the birthright. Fair and square.”

I’m kind of thinking our American birthright is government of the people, by the people, and for the people. Here’s the question: Is legal marijuana more important than that for-the-people birthright? Put another way, is marijuana prohibition a bigger problem for America today than corrupt government — government where moneyed interests call the shots and seize the spoils? That’s for every voter to decide.

If Esau had really been about to die, the sale of his birthright would have been a good deal for him. The food, the “mess of pottage” in the King James Version, would have saved his life. If you or your loved ones are actually facing the consequences of a marijuana conviction, Responsible Ohio probably looks like a good deal.

And look — Responsible Ohio doesn’t have a monopoly on grabbing marijuana money. But it is the first marijuana consortium to limit its taxes permanently in a State Constitution. That’s outrageous. There are at least six better ways to divide the new wealth and income from marijuana commerce than to give it all to the first self-nominated grabbers. But that brings me back to Judge Wisdom’s point about the lesser of two evils. Different people have different views about which evil is lesser. Where you stand depends on where you sit. That’s why we vote.

Polls seem to be saying Responsible Ohio may win. If it does, much of the blame will be on elected officials who should have seen this coming and figured out a way to handle it. Combined with possible legalization of marijuana in Canada, a win for Responsible Ohio would shake the windows and rattle the walls in Legislatures across the country. Sure, figuring out how to share the newly-created wealth from marijuana legalization fairly is not easy. But it’s not impossible.